Vallejos v. Commissioner of Registration
Encyclopedia
Vallejos v. Commissioner of Registration is a 2011 court case against the government of Hong Kong
by a foreign domestic helper
(FDH) seeking permanent residence and the right of abode in Hong Kong. Because of its subject matter it was commonly referred to in the media as the "maids' residency case" (外傭居港權案). It was the first of three similar lawsuits filed by FDHs in that year, and the ruling in Vallejos was expected to be a precedent for the other two. On 30 September 2011, Justice Johnson Lam of the Court of First Instance
(CFI) ruled that existing legislation restricting FDHs from qualifying for permanent residence contravened the Hong Kong Basic Law
. The government will appeal Lam's decision to the Court of Appeal
.
, where she was previously a businesswoman. She came to Hong Kong in 1986 as an FDH, while the city was still a British colony
. During her first year in Hong Kong, she switched employers, but afterwards continued to work for the family of Barry Ong for more than two decades. She performed volunteer work and became active in a church. She approached the Immigration Department for verification of eligibility for permanent residency in April 2008. In November that year, the Immigration Department informed her that her application was not successful; she was not considered to be "ordinarily resident" in Hong Kong by reason of Immigration Ordinance Article 2(4)(a)(vi). The following month, she approached the Registration of Persons Office to apply for a Hong Kong Permanent Identity Card, for which she was also rejected. She appealed to the Registration of Persons Tribunal, which in June 2009 ruled against her. At that point, Vallejos applied to the Legal Aid Department
for help; local law firm Barnes and Daly, as well as barrister Gladys Li
, agreed to assist Vallejos in applying for judicial review to rule on whether the relevant provision of the Immigration Ordinance complied with the Basic Law. The case came to mainstream media attention in December 2010.
Vallejos turned out to be one of five Philippine nationals who would file applications for judicial review. The others were applying jointly in groups of two. Daniel Domingo and his wife Irene Raboy Domingo had been working in Hong Kong since the 1980s as FDHs, met, married, and bore three children there. They had applied for verification in April 2006, and had been granted unconditional stay but not permanent residency in November 2007. Josephine Gutierrez came to Hong Kong in 1991, where her son Joseph Gutierrez was born in 1996; both applied for verification in December 2006. Vallejos' court date was set for 22 August, while the others were scheduled for October. Vallejos stated that she hoped to retire in Hong Kong.
and the Hong Kong Basic Law
Article 24(2) which would take effect in the future. Foreigners who "ordinarily resided" in the city for seven years would be allowed to apply for permanent residence; if successful, they would gain various privileges including the franchise, freedom to stay in Hong Kong and switch employers without a work visa, and eligibility for public housing
.
"Ordinarily resident", a term whose definition is found primarily in case law
, had been qualified by statute as early as 1971 for purposes of establishing qualifications for other residency statuses. Beginning in 1982, the Hong Kong Immigration Ordinance in Article 2(4)(a) law stated that people who had landed unlawfully, had breached their limit of stay, or were refugees, would not be treated as "ordinarily resident". In 1989, that was amended to further exclude people in immigration detention from the definition of "ordinarily resident". On 1 July 1997, immediately after the transfer of sovereignty over Hong Kong, additional amendments to the Hong Kong Immigration Ordinance came into effect. Among other changes, these excluded four further classes of persons from the definition of "ordinarily resident": foreign contract workers under importation of labour schemes, foreign domestic helpers, consular staff in Hong Kong, and members of the People's Liberation Army Hong Kong Garrison
. Another amendment in 2002 excluded holders of "prescribed Central People's Government travel document[s]". Thus, in total nine classes of people physically present in Hong Kong were defined by statute not to be "ordinarily resident".
represented the respondent, the Commissioner of Registration. During the hearing, the courtroom was packed to overflowing with lawyers, journalists, and other members of the public, who took up not just the seats in the public gallery, but also those for defendants and jury members (the latter being unoccupied as the case at hand was not a jury trial
but a judicial review). Another hundred people watched the proceedings on a large-screen television
in the lobby, while protestors both supporting and opposing Vallejos' case faced off outside the building without incident.
Justice Johnson Lam of the CFI had been expected to rule on the case on 29 September 2011. However, the Hong Kong Observatory
raised tropical cyclone warning signal
#8 due to the approach of Typhoon Nesat
early that morning, meaning that government offices closed for the day. The next morning, the weather had returned to normal, and Lam announced his ruling that the relevant provision of the Immigration Ordinance was inconsistent with the Basic Law. Vallejos herself did not attend court that day, as she was at work.
Ambrose Lee
announced that the government would appeal Lam's ruling, and separately would apply to stay
the judgment in a hearing in October. He also stated that the Immigration Department would suspend right of abode applications by FDHs, and that such action did not amount to contempt of court
as commentators had suggested.
Government officials in Indonesia and the Philippines, the two major countries of origin of FDHs in Hong Kong, reacted favorably to the ruling. Philippine President Benigno Aquino III
welcomed the news, though stating that he was not too familiar with Hong Kong's laws and would look into the matter. Philippine Vice President Jejomar Binay
called it "a step forward in recognizing the rights of migrants". Philippine Department of Foreign Affairs spokesman Raul Hernandez was more circumspect, stating in general terms that the government welcomed developments which improved the situation of overseas Filipino workers, but that he would refrain from further comment as other similar cases were still pending. Gusti Made Arka, director-general for workers abroad with the Indonesian Ministry of Labour, similarly stated that "We have always considered Hong Kong one of the best places for our workers ... We hope that this decision is seen as a benchmark and that other countries do the same".
Regina Ip
stated that the government would have to allocate more resources to deal with the increased workload resulting from right of abode applications by FDHs. Since Lam's earlier ruling in favour of Vallejos in late September, there had been a definite rise in the number of FDHs applying for permanent residence, from just one or two such cases per month in the past, to an average of sixteen in August and September 2011, and over 20 applications on 25 October alone. In total, the Immigration Department stated that it had received 148 permanent residence applications from FDHs in October. Later on 26 October, Lam heard arguments in two further FDH residence cases, namely Josephine B. Gutierrez v. Commissioner of Registration (HCAL 136/2010) and Joseph James Gutierrez v. Commissioner of Registration (HCAL 137/2010). Vallejos' lawyer Mark Daly stated that his client's residence application was "100 percent sure" as a result. The Hong Kong Human Rights Monitor
was quoted as welcoming the ruling.
predicted that 125,000 FDHs would each sponsor an average of three dependents to come to Hong Kong, meaning a total of 500,000 persons newly eligible for government programmes such as public education, housing subsidies, and Comprehensive Social Security Assistance, leading to tens of billions of dollars in additional public expenditures. Lee's fellow legislator Chan Kam-lam stated that the DAB had collected 91,500 signatures in 18 electoral districts, of whom all but 210 were in opposition to granting FDHs the right of abode. In response, Law Yuk-kai of the Hong Kong Human Rights Monitor
expressed doubts about the DAB's expenditures figures, deriding them as "scare tactics" and comparing them to the DAB's earlier opposition to residency rights for mainland children in Ng Ka Ling v. Director of Immigration. Eman Villanueva of the Asian Migrants' Coordinating Body also denounced the DAB's statements.
Civic Party
chairman Alan Leong
questioned the assumption that maids could qualify for permanent residency even if Vallejos won her case, noting that the Immigration Department required applicants for permanent residency to sign a declaration that, among other things, they had "sufficient means of income to support myself and my family in Hong Kong without assistance"; he suggested that the Immigration Department would be unwilling to accept such declarations from FDHs with a typical monthly income of little more than HK$3,000. Leong went on to accuse the Liberal Party of misleading the public on the issue. An unnamed Immigration Department employee interviewed by Sing Tao Daily
, in response to Leong's comments, noted that low income was not necessarily a barrier to becoming a permanent resident, and that applications from other low-income persons such as foreign students were commonly approved.
legislator Paul Tse
raised questions about the Civic Party
's links to the case, questions which were echoed by internet users including those on popular local forum Uwants as well as a Facebook
group created by Tse to gather videos and articles on the potential negative impact of the judicial review. Vallejos' lawyer, Gladys Li, is a founding member of the Civic Party. The Liberal Party
took out attack ads stating that "Civic Party core member Gladys Li is helping foreign maids to fight their residency case", echoed the DAB's warnings of massive increases in population and public expenditures, and called on the Civic Party to make a formal public statement of whether or not the party itself supported permanent residency for FDHs. An editorial in Wen Wei Po
the week after the ruling accused the Civic Party of being "an enemy of the people" for their alleged support of the maids' residency case.
of the National People's Congress
(NPC) of the People's Republic of China, either prior to the court ruling or after it, just as in the last major right of abode case in Hong Kong Ng v. Director of Immigration. Liberal Party
chairwoman Miriam Lau
for her part stated that the public would not be likely to accept the government proactively seeking an interpretation before the ruling in the case came out; she said that interpretation should be a last resort, and the government should first look at other methods to resolve the residency problem. Hong Kong Federation of Trade Unions
chairman and NPC delegate Cheng Yiu Tong
stated that there was a high likelihood the government would seek an interpretation if they lost the case. NPC delegate and former Legislative Council president Rita Fan
stated that whether the government sought an interpretation before or after the case, it would be criticised either way for inviting "interference in Hong Kong affairs"; she also opined that an interpretation of the Basic Law would be a more appropriate method of dealing with the case, as opposed to Basic Law Committee deputy head Elsie Leung
's suggestion of an amendment. However, after the hearing opened, government counsel David Pannick stated in response to a question from Justice Johnson Lam that the government had no intention of seeking an interpretation before Lam had issued his decision, but reserved the possibility of doing so afterwards. In late September, the DAB renewed calls for the Hong Kong government to consider seeking an interpretation.
There were further calls for an interpretation after the government's loss in the CFI. The New People's Party
, headed by former Security for Secretary Regina Ip
, also joined the calls for the government to seek interpretation. By 4 October, Ip and her two deputy party heads Michael Tien
and Louis Shih
had organised the gathering of 3,227 signatures in support of interpretation, which they presented to Ambrose Lee at a meeting with him; however, Lee stated that the government had no intention of seeking an interpretation in the short term. Basic Law Committee member Lau Nai-keung also wrote an editorial in the China Daily
stating that the government should have made an application for interpretation prior to the ruling, and should definitely make one before the case goes to the Court of Final Appeal (CFA).
Elsie Leung also called on the government to seek an interpretation as soon as possible; based her knowledge of the Court of Final Appeal's reading of the Basic Law in prior cases going back to Director of Immigration v. Chong Fung Yuen
in 2001, she did not expect that the government would be able to win its case in that venue. She further accused both the CFI and the CFA of ignoring the legislative intent
of the Basic Law's drafters. On this point, University of Hong Kong law professor Albert Chen
, also a member of the Basic Law Committee, noted that Lam had very little flexibility in how he could rule on Vallejos precisely due to CFA precedents in the Chong case and other early right of abode cases. He stated that the CFA's reluctance to take into account extrinsic materials in determining the intent of Article 24 stemmed largely from the fact that the extrinsic materials available to the CFA regarding the intent of Article 24 were published after the Basic Law itself. As a solution, h suggested that, if Beijing made public the minutes from the negotiations leading up to the 1984 Sino-British Joint Declaration
, which was the basis for the drafting of the Basic Law, it might persuade the CFA to re-examine its interpretation of Article 24; the Joint Declaration, being a treaty, was subject to principles of international law
, under which signatories to a treaty had the right to issue explanations of their positions.
In late October, after Lam declined to issue a stay of execution of his earlier judgment, Alan Leong
spoke out again against calls for a NPCSC interpretation, stating that Lam's ruling showed that the courts had recognised the Immigration Department's rights as "gatekeepers" and that there was no need for an interpretation.
to Civic Party headquarters in North Point
. Roughly 30 or so persons belonging to Socialist Action and the Chinese University of Hong Kong
-alumni-dominated Leftist Reloaded confronted the CHKP members and attempted to prevent them from marching, claiming the CHKP members were promoting racism and discrimination. A scuffle broke out; police attempted to separate the two sides with barricades, but then people present at the scene began to clash with the police themselves. Police then arrested 15 men and four women and removed them from the scene; among them, three refused bail. Another march by CHKP marchers proceeded from Electric Road to the Civic Party headquarters without incident. However, as it was a Sunday, no party members or staff were present at Civic Party headquarters. According to a Ta Kung Pao
report, 1,000 people attended that march.
The week after the judgment was announced, the DAB organised another march from Chater House
in Central
to the Tamar site
in Admiralty
on 2 October, while Caring Hong Kong Power planned a march for 9 October. According to separate Sing Tao Daily
reports, 1,000 people attended the DAB's march, while 2,000 attended CHKP's. Marches and rallies continued to the end of the month. On 23 October, 200 domestic helpers organised a candlelight vigil
at Statue Square
in support of the case. The following day, 1,500 people joined a Hong Kong Federation of Trade Unions
march from Wan Chai
to government headquarters in opposition to residency rights for domestic helpers.
Government of Hong Kong
The Government of the Hong Kong Special Administrative Region of the People's Republic of China, commonly the Hong Kong Government, is led by the Chief Executive as Head of the Government, who is also the head of the Hong Kong SAR...
by a foreign domestic helper
Foreign domestic helpers in Hong Kong
Foreign domestic helpers in Hong Kong are foreign domestic workers and housemaids employed by Hongkongers, typically families. They make up approximately 3% of the population of Hong Kong and an overwhelming majority of them are women...
(FDH) seeking permanent residence and the right of abode in Hong Kong. Because of its subject matter it was commonly referred to in the media as the "maids' residency case" (外傭居港權案). It was the first of three similar lawsuits filed by FDHs in that year, and the ruling in Vallejos was expected to be a precedent for the other two. On 30 September 2011, Justice Johnson Lam of the Court of First Instance
Court of First Instance (Hong Kong)
The Court of First Instance is one of two courts in the High Court of Hong Kong. The court has unlimited jurisdiction in both civil and criminal matters...
(CFI) ruled that existing legislation restricting FDHs from qualifying for permanent residence contravened the Hong Kong Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
. The government will appeal Lam's decision to the Court of Appeal
Court of Appeal (Hong Kong)
The Court of Appeal deals with appeals on all civil and criminal cases from the Court of First Instance and the District Courts of Hong Kong. It is one of two courts that makes up the High Court of Hong Kong....
.
The applicant
The applicant, Evangeline Banao Vallejos, is a native of the PhilippinesPhilippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
, where she was previously a businesswoman. She came to Hong Kong in 1986 as an FDH, while the city was still a British colony
British Hong Kong
British Hong Kong refers to Hong Kong as a Crown colony and later, a British dependent territory under British administration from 1841 to 1997.- Colonial establishment :...
. During her first year in Hong Kong, she switched employers, but afterwards continued to work for the family of Barry Ong for more than two decades. She performed volunteer work and became active in a church. She approached the Immigration Department for verification of eligibility for permanent residency in April 2008. In November that year, the Immigration Department informed her that her application was not successful; she was not considered to be "ordinarily resident" in Hong Kong by reason of Immigration Ordinance Article 2(4)(a)(vi). The following month, she approached the Registration of Persons Office to apply for a Hong Kong Permanent Identity Card, for which she was also rejected. She appealed to the Registration of Persons Tribunal, which in June 2009 ruled against her. At that point, Vallejos applied to the Legal Aid Department
Legal Aid Department
The Legal Aid Department often abbreviated as LAD, is a department in the Government of Hong Kong. It provides legal aid in legal representation for civil proceedings and criminal proceedings in District Court and above.- External links :*...
for help; local law firm Barnes and Daly, as well as barrister Gladys Li
Gladys Li
Gladys Veronica Li, Senior Counsel at the Hong Kong Bar with a busy constitutional law and human rights practice, is a founding member of the Hong Kong Civic Party. She began to take an interest in public affairs on her return to Hong Kong in 1982, after 10 years' practice as a barrister in England...
, agreed to assist Vallejos in applying for judicial review to rule on whether the relevant provision of the Immigration Ordinance complied with the Basic Law. The case came to mainstream media attention in December 2010.
Vallejos turned out to be one of five Philippine nationals who would file applications for judicial review. The others were applying jointly in groups of two. Daniel Domingo and his wife Irene Raboy Domingo had been working in Hong Kong since the 1980s as FDHs, met, married, and bore three children there. They had applied for verification in April 2006, and had been granted unconditional stay but not permanent residency in November 2007. Josephine Gutierrez came to Hong Kong in 1991, where her son Joseph Gutierrez was born in 1996; both applied for verification in December 2006. Vallejos' court date was set for 22 August, while the others were scheduled for October. Vallejos stated that she hoped to retire in Hong Kong.
Immigration laws
The year after Vallejos arrived, the law of Hong Kong was amended to introduce the concept of "permanent residence". Permanent residence was a new status which would broaden the classes of people who enjoyed the right of abode in Hong Kong. It was to be conditional on prior "ordinary residence" in Hong Kong, so that it would comply with the 1984 Sino-British Joint DeclarationSino-British Joint Declaration
The Sino-British Joint Declaration, formally known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, was signed by the Prime Ministers, Zhao Ziyang and Margaret...
and the Hong Kong Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
Article 24(2) which would take effect in the future. Foreigners who "ordinarily resided" in the city for seven years would be allowed to apply for permanent residence; if successful, they would gain various privileges including the franchise, freedom to stay in Hong Kong and switch employers without a work visa, and eligibility for public housing
Public housing in Hong Kong
Public housing in Hong Kong is a set of mass housing programmes through which the Government of Hong Kong provides affordable housing for lower-income residents. It is a major component of housing in Hong Kong, with nearly half of the population now residing in some form of public housing...
.
"Ordinarily resident", a term whose definition is found primarily in case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, had been qualified by statute as early as 1971 for purposes of establishing qualifications for other residency statuses. Beginning in 1982, the Hong Kong Immigration Ordinance in Article 2(4)(a) law stated that people who had landed unlawfully, had breached their limit of stay, or were refugees, would not be treated as "ordinarily resident". In 1989, that was amended to further exclude people in immigration detention from the definition of "ordinarily resident". On 1 July 1997, immediately after the transfer of sovereignty over Hong Kong, additional amendments to the Hong Kong Immigration Ordinance came into effect. Among other changes, these excluded four further classes of persons from the definition of "ordinarily resident": foreign contract workers under importation of labour schemes, foreign domestic helpers, consular staff in Hong Kong, and members of the People's Liberation Army Hong Kong Garrison
People's Liberation Army Hong Kong Garrison
The People's Liberation Army Hong Kong Garrison is a garrison of the People's Liberation Army of the People's Republic of China responsible for defence duties of the Hong Kong Special Administrative Region since the sovereignty of Hong Kong was returned to the PRC in 1997...
. Another amendment in 2002 excluded holders of "prescribed Central People's Government travel document[s]". Thus, in total nine classes of people physically present in Hong Kong were defined by statute not to be "ordinarily resident".
Court of First Instance hearing and ruling
The hearing on Vallejos' case began on August 22, and stretched out until the 24th. David PannickDavid Pannick
David Philip Pannick, Baron Pannick QC is a leading barrister in the United Kingdom, and crossbencher in the House of Lords. He practises mainly in the areas of public law and human rights...
represented the respondent, the Commissioner of Registration. During the hearing, the courtroom was packed to overflowing with lawyers, journalists, and other members of the public, who took up not just the seats in the public gallery, but also those for defendants and jury members (the latter being unoccupied as the case at hand was not a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
but a judicial review). Another hundred people watched the proceedings on a large-screen television
Large-screen television technology
Large-screen television technology developed rapidly in the late 1990s and 2000s. Various thin screen technologies are being developed, but only the liquid crystal display , plasma display and Digital Light Processing were released on the public market...
in the lobby, while protestors both supporting and opposing Vallejos' case faced off outside the building without incident.
Justice Johnson Lam of the CFI had been expected to rule on the case on 29 September 2011. However, the Hong Kong Observatory
Hong Kong Observatory
Hong Kong Observatory is a department of the Hong Kong government. The Observatory forecasts weather and issues warnings on weather-related hazards...
raised tropical cyclone warning signal
Hong Kong Tropical Cyclone Warning Signals
The Hong Kong tropical cyclone warning signals or informally typhoon signals are a set of signals used to indicate the threat or effects of a tropical cyclone. The Hong Kong Observatory issues the warning signal if a tropical cyclone is centred within of Hong Kong and may affect Hong Kong later...
#8 due to the approach of Typhoon Nesat
Typhoon Nesat (2011)
Typhoon Nesat was the most powerful tropical cyclone to directly impact China since 2005. It also struck the Philippines during the 2011 Pacific typhoon season, killing 83 people...
early that morning, meaning that government offices closed for the day. The next morning, the weather had returned to normal, and Lam announced his ruling that the relevant provision of the Immigration Ordinance was inconsistent with the Basic Law. Vallejos herself did not attend court that day, as she was at work.
Governmental reactions
The day of the ruling, Hong Kong Secretary for SecuritySecretary for Security
The Secretary for Security is the member of the Hong Kong Government in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters....
Ambrose Lee
Ambrose Lee
Ambrose Lee Siu-kwong IDSM JP is Secretary for Security of the Hong Kong and a member of the Executive Council. He was appointed to his post on 4 August 2003, replacing Regina Ip-Background:...
announced that the government would appeal Lam's ruling, and separately would apply to stay
Stay of execution
A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty; it refers to the imposition of whatever judgment is being stayed....
the judgment in a hearing in October. He also stated that the Immigration Department would suspend right of abode applications by FDHs, and that such action did not amount to contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
as commentators had suggested.
Government officials in Indonesia and the Philippines, the two major countries of origin of FDHs in Hong Kong, reacted favorably to the ruling. Philippine President Benigno Aquino III
Benigno Aquino III
Benigno Simeon Cojuangco Aquino III , also known as Noynoy Aquino or PNoy, is a Filipino politician who has been the 15th and current President of the Philippines since June 2010....
welcomed the news, though stating that he was not too familiar with Hong Kong's laws and would look into the matter. Philippine Vice President Jejomar Binay
Jejomar Binay
Jejomar "Jojo" Cabauatan Binay, Sr. , also known as Jojo Binay or VPNay, is a Filipino politician who has been the 15th Vice President of the Philippines since 2010. Previously, he was Mayor of Makati City from 1986 to 1998 and again from 2001 to 2010...
called it "a step forward in recognizing the rights of migrants". Philippine Department of Foreign Affairs spokesman Raul Hernandez was more circumspect, stating in general terms that the government welcomed developments which improved the situation of overseas Filipino workers, but that he would refrain from further comment as other similar cases were still pending. Gusti Made Arka, director-general for workers abroad with the Indonesian Ministry of Labour, similarly stated that "We have always considered Hong Kong one of the best places for our workers ... We hope that this decision is seen as a benchmark and that other countries do the same".
NGO and public reactions
Justice Lam, knowing that whatever decision he made would be controversial, took time to emphasise during the court proceedings that his job was to rule on the content of the law, not to take into account political or social factors, which would be the job of the legislature. Migrants from the Philippines and Indonesia called on their respective governments to discuss the situation with the Hong Kong government and find a way to allay the Hong Kong public's concerns over the ruling.Application for stay of judgment
On 4 October, the government filed an application for a stay of execution of Lam's earlier judgment. David Pannick, again representing the Commissioner, had argued that the "status quo should be maintained" until appeals had been exchausted. However on 26 October, Johnson Lam ruled against the government's application for stay. He noted that his earlier ruling applied only to the case of Vallejos herself. He stated that other FDHs would be free to file applications. However, he stated that it would be entirely permissible for the Immigration Department to delay processing of such applications until after appeals, and that such action would not constitute contempt of court as the government had feared. He further stated that if the Immigration Department chose not to entertain other applications by FDHs, it was up to those applicants themselves to take their cases to court. He also pointed out that "[s]hort of a temporary validity order, the court cannot pre-empt any person from relying on the legal principles set out in a judgment of the court"; the government did not seek such an order, and Lam doubted that the court had jurisdiction to give it. Thus, as he stated, the relief sought by the government would not shield it from suits by other right of abode applicants.Regina Ip
Regina Ip
Regina Ip Lau Suk-yee, GBS JP is a member of the Legislative Council of Hong Kong , as well as the co-founder and current chairwoman of the New People's Party and Savantas Policy Institute....
stated that the government would have to allocate more resources to deal with the increased workload resulting from right of abode applications by FDHs. Since Lam's earlier ruling in favour of Vallejos in late September, there had been a definite rise in the number of FDHs applying for permanent residence, from just one or two such cases per month in the past, to an average of sixteen in August and September 2011, and over 20 applications on 25 October alone. In total, the Immigration Department stated that it had received 148 permanent residence applications from FDHs in October. Later on 26 October, Lam heard arguments in two further FDH residence cases, namely Josephine B. Gutierrez v. Commissioner of Registration (HCAL 136/2010) and Joseph James Gutierrez v. Commissioner of Registration (HCAL 137/2010). Vallejos' lawyer Mark Daly stated that his client's residence application was "100 percent sure" as a result. The Hong Kong Human Rights Monitor
Hong Kong Human Rights Monitor
Hong Kong Human Rights Monitor is a local non-governmental organization which was established in April 1995. It aims at promoting better human rights protection in Hong Kong in the aspect of legislation and people's everyday life....
was quoted as welcoming the ruling.
Potential impact on public spending
The Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) spoke out in opposition to the possibility of permanent residency for FDHs, citing its potential high costs. DAB legislator Starry LeeStarry Lee
Starry Lee Wai-king is the member of Legislative Council of Hong Kong representing the constituency of Kowloon West. She is also a member of Kowloon City's District Council. She is currently the second-youngest member in LegCo, after Gary Chan...
predicted that 125,000 FDHs would each sponsor an average of three dependents to come to Hong Kong, meaning a total of 500,000 persons newly eligible for government programmes such as public education, housing subsidies, and Comprehensive Social Security Assistance, leading to tens of billions of dollars in additional public expenditures. Lee's fellow legislator Chan Kam-lam stated that the DAB had collected 91,500 signatures in 18 electoral districts, of whom all but 210 were in opposition to granting FDHs the right of abode. In response, Law Yuk-kai of the Hong Kong Human Rights Monitor
Hong Kong Human Rights Monitor
Hong Kong Human Rights Monitor is a local non-governmental organization which was established in April 1995. It aims at promoting better human rights protection in Hong Kong in the aspect of legislation and people's everyday life....
expressed doubts about the DAB's expenditures figures, deriding them as "scare tactics" and comparing them to the DAB's earlier opposition to residency rights for mainland children in Ng Ka Ling v. Director of Immigration. Eman Villanueva of the Asian Migrants' Coordinating Body also denounced the DAB's statements.
Civic Party
Civic Party
Civic Party is a liberal democratic political party in Hong Kong.The Civic Party is currently the third largest political party in the Legislative Council of Hong Kong, with five members securing seats in the 2008 Hong Kong Legislative Council elections...
chairman Alan Leong
Alan Leong
Kah Kit Alan Leong , SC is a member of the Hong Kong Legislative Council, representing the Kowloon East geographical constituency and leader of the Civic Party. He is also vice-chairperson of the Independent Police Complaints Council.-Early career:...
questioned the assumption that maids could qualify for permanent residency even if Vallejos won her case, noting that the Immigration Department required applicants for permanent residency to sign a declaration that, among other things, they had "sufficient means of income to support myself and my family in Hong Kong without assistance"; he suggested that the Immigration Department would be unwilling to accept such declarations from FDHs with a typical monthly income of little more than HK$3,000. Leong went on to accuse the Liberal Party of misleading the public on the issue. An unnamed Immigration Department employee interviewed by Sing Tao Daily
Sing Tao Daily
The Sing Tao Daily is Hong Kong's second largest Chinese language newspaper. It is owned by Sing Tao News Corporation Limited, of which Charles Ho Tsu Kwok is the chairman. Its English language sister paper is The Standard...
, in response to Leong's comments, noted that low income was not necessarily a barrier to becoming a permanent resident, and that applications from other low-income persons such as foreign students were commonly approved.
Civic Party connections to the case
Tourism functional constituencyFunctional constituency
In the political systems of Hong Kong and Macau, a functional constituency is a professional or special interest group involved in the electoral process...
legislator Paul Tse
Paul Tse
Paul Tse Wai-chun is a Hong Kong solicitor, who advertises himself as the "Superman of Law". He also owns a small travel agency and was elected to the Legislative Council of Hong Kong for the tourism functional constituency in the 2008 legislative election...
raised questions about the Civic Party
Civic Party
Civic Party is a liberal democratic political party in Hong Kong.The Civic Party is currently the third largest political party in the Legislative Council of Hong Kong, with five members securing seats in the 2008 Hong Kong Legislative Council elections...
's links to the case, questions which were echoed by internet users including those on popular local forum Uwants as well as a Facebook
Facebook
Facebook is a social networking service and website launched in February 2004, operated and privately owned by Facebook, Inc. , Facebook has more than 800 million active users. Users must register before using the site, after which they may create a personal profile, add other users as...
group created by Tse to gather videos and articles on the potential negative impact of the judicial review. Vallejos' lawyer, Gladys Li, is a founding member of the Civic Party. The Liberal Party
Liberal Party (Hong Kong)
Liberal Party is a business-friendly liberal conservative political party in Hong Kong.-Party beliefs:The party is known for its conservative and business-friendly policies. Despite being a political party friendly with Beijing, it fits in the centre-right political spectrum...
took out attack ads stating that "Civic Party core member Gladys Li is helping foreign maids to fight their residency case", echoed the DAB's warnings of massive increases in population and public expenditures, and called on the Civic Party to make a formal public statement of whether or not the party itself supported permanent residency for FDHs. An editorial in Wen Wei Po
Wen Wei Po
Wen Wei Po is a Hong Kong-based Chinese language newspaper, which was first established in Shanghai in January 1938; its Hong Kong version was launched on 9 September 1948....
the week after the ruling accused the Civic Party of being "an enemy of the people" for their alleged support of the maids' residency case.
Possibility of Standing Committee interpretation
As early as August 2011, there was speculation that the government would seek an interpretation of the Basic Law from the Standing CommitteeStanding Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
of the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
(NPC) of the People's Republic of China, either prior to the court ruling or after it, just as in the last major right of abode case in Hong Kong Ng v. Director of Immigration. Liberal Party
Liberal Party (Hong Kong)
Liberal Party is a business-friendly liberal conservative political party in Hong Kong.-Party beliefs:The party is known for its conservative and business-friendly policies. Despite being a political party friendly with Beijing, it fits in the centre-right political spectrum...
chairwoman Miriam Lau
Miriam Lau
Miriam Lau Kin Yee, GBS, OBE, JP , former married name Miriam Lau Lau Kin Yee, is a member of the Legislative Council of Hong Kong , representing the transport industry functional constituency...
for her part stated that the public would not be likely to accept the government proactively seeking an interpretation before the ruling in the case came out; she said that interpretation should be a last resort, and the government should first look at other methods to resolve the residency problem. Hong Kong Federation of Trade Unions
Hong Kong Federation of Trade Unions
The Hong Kong Federation of Trade Unions is a pro-Beijing labour and political group in Hong Kong. It is the largest labour group in Hong Kong with over 341,000 members in 181 affiliates and 62 associated trade unions.-Policies:...
chairman and NPC delegate Cheng Yiu Tong
Cheng Yiu Tong
Cheng Yiu-tong GBS, JP is a non-official member of the Executive Council of Hong Kong. He was appointed as the chairman of the Hong Kong Federation of Trade Unions in April 2000. He is also the Hong Kong delegate to the National People's Congress of the People's Republic of China.-External links:*...
stated that there was a high likelihood the government would seek an interpretation if they lost the case. NPC delegate and former Legislative Council president Rita Fan
Rita Fan
Rita Fan Hsu Lai-tai GBM GBS CBE JP was the President of the Legislative Council of Hong Kong after the transfer of sovereignty from the United Kingdom in 1997. She was the first woman to hold that position....
stated that whether the government sought an interpretation before or after the case, it would be criticised either way for inviting "interference in Hong Kong affairs"; she also opined that an interpretation of the Basic Law would be a more appropriate method of dealing with the case, as opposed to Basic Law Committee deputy head Elsie Leung
Elsie Leung
Elsie Leung Oi-sie, GBM JP, was the Secretary for Justice of Hong Kong from 1997 to 2005, and was a member of the Executive Council of Hong Kong. She was succeeded by Wong Yan Lung, SC, on 20 October 2005.-Education:...
's suggestion of an amendment. However, after the hearing opened, government counsel David Pannick stated in response to a question from Justice Johnson Lam that the government had no intention of seeking an interpretation before Lam had issued his decision, but reserved the possibility of doing so afterwards. In late September, the DAB renewed calls for the Hong Kong government to consider seeking an interpretation.
There were further calls for an interpretation after the government's loss in the CFI. The New People's Party
New People's Party (Hong Kong)
The New People's Party is a political party in Hong Kong, part of the pro-government or pro-Beijing camp. It was established by Regina Ip on 9 January 2011. She is now the chairperson. Michael Tien, former member of the Liberal Party and younger brother of former Liberal Party chair James Tien, is...
, headed by former Security for Secretary Regina Ip
Regina Ip
Regina Ip Lau Suk-yee, GBS JP is a member of the Legislative Council of Hong Kong , as well as the co-founder and current chairwoman of the New People's Party and Savantas Policy Institute....
, also joined the calls for the government to seek interpretation. By 4 October, Ip and her two deputy party heads Michael Tien
Michael Tien
Michael Puk Sun Tien is deputy chairman of New People's Party, and the member of Tsuen Wan District Council. He is founder of The G2000 Group and the former chairman of the board of the Kowloon-Canton Railway Corporation . He joined the Liberal Party in 2008, a party led by his elder brother,...
and Louis Shih
Louis Shih
Louis Shih Tai Cho is a Chinese dermatologist in Hong Kong and deputy chairman of New People's Party.Shih grew up on a public housing estate in Kwun Tong, Kowloon. He graduated from La Salle College and the MBBS of the University of Hong Kong. He emigrated to Canada in the early 1980s, but...
had organised the gathering of 3,227 signatures in support of interpretation, which they presented to Ambrose Lee at a meeting with him; however, Lee stated that the government had no intention of seeking an interpretation in the short term. Basic Law Committee member Lau Nai-keung also wrote an editorial in the China Daily
China Daily
The China Daily is an English language daily newspaper published in the People's Republic of China.- Overview :China Daily was established in June 1981 and has the widest print circulation of any English-language newspaper in the country...
stating that the government should have made an application for interpretation prior to the ruling, and should definitely make one before the case goes to the Court of Final Appeal (CFA).
Elsie Leung also called on the government to seek an interpretation as soon as possible; based her knowledge of the Court of Final Appeal's reading of the Basic Law in prior cases going back to Director of Immigration v. Chong Fung Yuen
Director of Immigration v. Chong Fung Yuen
Director of Immigration v. Chong Fung Yuen was a 2001 case in the Court of Final Appeal, Hong Kong. Chief Justice Andrew Li, in the Court's unanimous opinion, affirmed lower court decisions that Chinese citizens born in Hong Kong enjoyed the right of abode regardless of the Hong Kong immigration...
in 2001, she did not expect that the government would be able to win its case in that venue. She further accused both the CFI and the CFA of ignoring the legislative intent
Legislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...
of the Basic Law's drafters. On this point, University of Hong Kong law professor Albert Chen
Albert Chen
Albert Hung Yee Chen is a legal scholar in Hong Kong. He was the immediate past Dean of the Faculty of Law of the University of Hong Kong, where he currently serves as the Chan Professor in Constitutional Law.-History:...
, also a member of the Basic Law Committee, noted that Lam had very little flexibility in how he could rule on Vallejos precisely due to CFA precedents in the Chong case and other early right of abode cases. He stated that the CFA's reluctance to take into account extrinsic materials in determining the intent of Article 24 stemmed largely from the fact that the extrinsic materials available to the CFA regarding the intent of Article 24 were published after the Basic Law itself. As a solution, h suggested that, if Beijing made public the minutes from the negotiations leading up to the 1984 Sino-British Joint Declaration
Sino-British Joint Declaration
The Sino-British Joint Declaration, formally known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, was signed by the Prime Ministers, Zhao Ziyang and Margaret...
, which was the basis for the drafting of the Basic Law, it might persuade the CFA to re-examine its interpretation of Article 24; the Joint Declaration, being a treaty, was subject to principles of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, under which signatories to a treaty had the right to issue explanations of their positions.
In late October, after Lam declined to issue a stay of execution of his earlier judgment, Alan Leong
Alan Leong
Kah Kit Alan Leong , SC is a member of the Hong Kong Legislative Council, representing the Kowloon East geographical constituency and leader of the Civic Party. He is also vice-chairperson of the Independent Police Complaints Council.-Early career:...
spoke out again against calls for a NPCSC interpretation, stating that Lam's ruling showed that the courts had recognised the Immigration Department's rights as "gatekeepers" and that there was no need for an interpretation.
Marches and public protests
On 21 August, the day before the hearing began, 100 members of the group Caring Hong Kong Power (CHKP) planned a march from Victoria ParkVictoria Park, Hong Kong
Victoria Park is a public park in Hong Kong, named after Queen Victoria of the United Kingdom. It is located in Causeway Bay, on the north of Hong Kong Island, between Causeway Bay and Tin Hau MTR stations...
to Civic Party headquarters in North Point
North Point
North Point is a mixed-use urban area in the Eastern District of Hong Kong. It is the northernmost point of Hong Kong Island, adjacent to both Causeway Bay and Quarry Bay, and projecting toward Kowloon Bay. Fortress Hill occupies the western end of the North Point area.-History:In 1899, The...
. Roughly 30 or so persons belonging to Socialist Action and the Chinese University of Hong Kong
Chinese University of Hong Kong
The Chinese University of Hong Kong is a research-led university in Hong Kong.CUHK is the only tertiary education institution in Hong Kong with Nobel Prize winners on its faculty, including Chen Ning Yang, James Mirrlees, Robert Alexander Mundell and Charles K. Kao...
-alumni-dominated Leftist Reloaded confronted the CHKP members and attempted to prevent them from marching, claiming the CHKP members were promoting racism and discrimination. A scuffle broke out; police attempted to separate the two sides with barricades, but then people present at the scene began to clash with the police themselves. Police then arrested 15 men and four women and removed them from the scene; among them, three refused bail. Another march by CHKP marchers proceeded from Electric Road to the Civic Party headquarters without incident. However, as it was a Sunday, no party members or staff were present at Civic Party headquarters. According to a Ta Kung Pao
Ta Kung Pao
Ta Kung Pao is the oldest active Chinese language newspaper in China. It is based in Hong Kong and has been funded by the government of the People's Republic of China since 1949...
report, 1,000 people attended that march.
The week after the judgment was announced, the DAB organised another march from Chater House
Chater House
Chater House is an office tower in Central, Hong Kong opened in 2003. It is a part of the Hongkong Land portfolio of properties. Its main tenant is JPMorgan, who have their Asia Pacific headquarters in the building...
in Central
Central, Hong Kong
Central is the central business district of Hong Kong. It is located in Central and Western District, on the north shore of Hong Kong Island, across Victoria Harbour from Tsim Sha Tsui, the southernmost point of Kowloon Peninsula...
to the Tamar site
Tamar site
Tamar site , 4.2-hectare large, the former location of the naval basin attached to the headquarters of the British Forces Overseas Hong Kong, is currently the site of the Central Government Offices of the Hong Kong SAR Government at the harbourfront of Central, Hong Kong Island, Hong Kong.To the...
in Admiralty
Admiralty, Hong Kong
Admiralty is the eastern extension of central business district of the Central on the Hong Kong Island of Hong Kong. It is located on the eastern end of the Central and Western District, bordered by Wan Chai to the east and Victoria Harbour to the north. The name of Admiralty refers to the former...
on 2 October, while Caring Hong Kong Power planned a march for 9 October. According to separate Sing Tao Daily
Sing Tao Daily
The Sing Tao Daily is Hong Kong's second largest Chinese language newspaper. It is owned by Sing Tao News Corporation Limited, of which Charles Ho Tsu Kwok is the chairman. Its English language sister paper is The Standard...
reports, 1,000 people attended the DAB's march, while 2,000 attended CHKP's. Marches and rallies continued to the end of the month. On 23 October, 200 domestic helpers organised a candlelight vigil
Candlelight vigil
A candlelight vigil is an outdoor assembly of people carrying candles, held after sunset. Such events are typically held either to protest the suffering of some marginalized group of people, or in memory of lives lost to some disease, disaster, massacre or other tragedy. In the latter case, the...
at Statue Square
Statue Square
Statue Square is a public pedestrian square in Central, Hong Kong.-History:The square was built at the end of the 19th century. The idea of a square of statues dedicated to royalty was conceived by Sir Catchick Paul Chater. It derives its name from the fact that it originally contained the statue...
in support of the case. The following day, 1,500 people joined a Hong Kong Federation of Trade Unions
Hong Kong Federation of Trade Unions
The Hong Kong Federation of Trade Unions is a pro-Beijing labour and political group in Hong Kong. It is the largest labour group in Hong Kong with over 341,000 members in 181 affiliates and 62 associated trade unions.-Policies:...
march from Wan Chai
Wan Chai
Wan Chai is a metropolitan area situated at the western part of the Wan Chai District on the northern shore of Hong Kong Island, in Hong Kong. Its other boundaries are Canal Road to the east, Arsenal Street to the west and Bowen Road to the south. The area north of Gloucester Road is often called...
to government headquarters in opposition to residency rights for domestic helpers.